Royal Bank of Canada v. Lau, 2008 CanLII 64679 (ON SC)

COURT FILE NO: 08-CV-353893

DATE: 20081209

 

 

SUPERIOR COURT OF JUSTICE - ONTARIO

 

 

RE: Royal Bank of Canada

 

 

Plaintiff

- and -

 

 

 

Fidelia Kam-Fun Lau aka Fidelia Kam Fun Lau

 

Defendant

 

BEFORE: The Honourable Madam Justice Darla A. Wilson

 

COUNSEL:Natalie Marconi,

for the Plaintiff

 

Bernard Burton,

for the Defendant

 

HEARD: December 5, 2008

WILSON D.A., J:

ENDORSEMENT

 

 

[1] This is a motion brought by the Plaintiff for Summary Judgment under the Simplified Procedure, pursuant to Rule 76.07 of theRules of Civil Procedure. It pertains to a debt allegedly owed arising from a Visa Credit Card issued by the Plaintiff.

 

[2] Although it was not clear at the outset from the materials, the defendant brought a cross motion to dismiss the action with costs.

 

 

 

 

FACTS

 

[3] Certain facts are not in dispute. The Plaintiff issued Visa credit cards to Stephan Lau, the husband of the defendant, and to the defendant. Each had their own card with its own number on it. The cards were used by Mr Lau and by his wife from early 2005 until early 2008. The Visa statements were contained as an exhibit to the Affidavit of Yvonne Marshall and they demonstrate regular use of the Visa card by the defendant from January 2005 through January 2008. The monthly statements were addressed to both Mr. and Mrs. Lau at their home in Scarborough and on each statement, the charges are separated between each of them with a grand total for payment at the bottom.

 

[4] After January of 2008, the payments ceased and Mr. Lau went bankrupt. As of February 28, 2008 there was an unpaid balance of $35,485.50 and demand letters were written. The Statement of Claim was issued in April of 2008 and a defence was served the following month.

 

POSITIONS OF THE PARTIES

 

[5] The Plaintiff argues that the nature of the agreement for use of the Visa card was that although each user had a separate card, there was only one account and all of the purchases were listed on the monthly account and sent to both users in one statement. Points accumulated on purchases for example were totalled on the one statement, not separately according to the purchases made by each user.

 

[6] The evidence of Yvonne Marshall filed in support of the motion was that once a customer is approved for a credit card, the bank sends out a standard form letter and agreement setting out the terms and conditions of the card. Further, when a user signs the card, it states on the card that its use is subject to the terms of the Visa agreement. The agreement is clear that each of the users of the card is jointly and severally liable for the entire debt regardless of who made the purchases.

 

[7] The defendant in her affidavit deposes that she never signed the Visa Cardholder Agreement and never had any discussion with anyone at the bank concerning who was responsible for payment of the credit card debt. She states that she was an “authorized user” on her husband’s credit card but had no responsibility for payment; that was solely her husband’s liability. The basis for her belief appears to be the information from her husband as she had no discussion with anyone at the bank.

 

[8] Her spouse, Stephen Lau, has also filed an affidavit on the motion in which he deposes that someone at the bank, who he does not identify, suggested that he obtain a new Visa card and that his wife be an authorized user on the card which would permit her to make purchases on the account. He states that the sole responsibility for payment of the card would be his.

 

 

 

ANALYSIS

 

[9] Under Rule 76.07(9), the judge on the motion shallgrant summary judgment unless he or she is unable to decide the issues without cross-examination or it would be otherwise unjust to decide the issues on the motion. It has been clearly established that the test on this motion is a lower one than on a motion for summary judgment under Rule 20. In coming to its decision, the Court must look at the evidence as a whole and apply the principles of justice and fairness. Under this rule, the judge should make determinations of fact, including determinations of credibility, unless unable to do so without cross-examination; Newcourt Credit Group Inc. v. Hummel Pharmacy Ltd. (1998), 1998 CanLII 18859 (ON SC), 38 O.R. (3d) 82 (Div. Crt).

 

[10] The Defendant argues that she did not apply for the credit card nor did she sign any agreement. In my view, whether or not she made an application for the credit card is irrelevant to the issues I have to decide. Furthermore, it is not correct that she did not sign an agreement pertaining to the use of the card. She acknowledges that she used the card and in order to do so, she signed the back of the card which states that she agrees to be bound by the terms of the agreement of its use. She seems to rely on statements made by her husband as to the use of the card and who was responsible to make the payments. Even if he told her that she would have no liability for debt arising from the use of the card, this is no defence to the summary judgment motion before me. Furthermore, she cannot avoid liability because she failed to read the agreement. As Ms. Marshall deposes in her affidavit, the customers are not asked to sign an agreement detailing the terms and conditions of the card. The only document that is signed by the customer is the back of the credit card and there is no evidence to suggest that she did not sign her card and use it.

 

[11] Furthermore, under the terms of the Consumer Protection Act,in particular section 68(1), “a consumer who receives a credit card…without applying for it shall be deemed to have entered into a credit agreement with the issuer with respect to the card on first using the card.” The Actalso stipulates that the consumer becomes liable to the lender for payment upon use of the card.

 

[12] In this case, it is not disputed that Mrs. Lau used the card to make regular purchases. Under the terms of the Consumer Protection Act, Mrs. Lau is liable to repay the debts arising from the use of the card.

 

[13] Counsel for the defendant argued that the position of Mrs. Lau was different because she was only an “authorized user” on the card and he relies on an excerpt from the Royal Bank Internet site, which is appended as an exhibit to Mrs. Lau’s affidavit. This material is of no assistance on this motion as it is simply general information available to anyone, setting out the various products offered by the Royal Bank and does not deal with the specific facts of this case. In any event, the definition of an “authorized user”contained in that excerpt is “a person to whom we have issued a Visa card on your Visa account at your request...” and it appears that the authorized user has the same account number as the original card owner. That is not the case before me: Mr. Lau denies that he requested the card for his wife; and each of them had their own separate card with their own card number.

 

ORDER

 

[14] For the reasons set out above, I am satisfied that there is no genuine issue for trial and this is a case where summary judgment ought to be granted. An order shall issue granting judgment to the Plaintiff in the sum of $39,296.46 plus pre-judgment interest from September 16, 2008 pursuant to the Courts of Justice Act, plus costs. If counsel cannot agree on costs, I will accept written submissions of no more than 2 pages in length on or before December 12, 2008 following which I will fix costs. The defendant’s cross motion is dismissed without costs.

 

 

   

Wilson D.A., J.

 

Released: December 9, 2008

 

Provided by CanLII and retrieved on October 14, 2014.

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